Add another case to the sadly long list of lesbian parents behaving badly. This one comes from Oklahoma and it also raises an argument that does arise from time to time–an argument that provides and opportunity to think about gender neutrality and the definition of parenthood.

You can read the actual opinion here, but I will summarize the facts. I remind you, however, that I have no special knowledge of the facts and am merely repeating what the court says.

Ami Dubose and Tracey North began to live together in a lesbian relationship in 2001. North gave birth to a child in 2007. This child was planned by the couple and conceived via assisted insemination. (No information is provided about the source of sperm and I’m guessing anonymous donor.) The couple lived together, coparenting the child, until 2012. (By then the child would have been five or so.)

Dubose never adopted the child and Dubose and North didn’t formalize their relationship. While I’m not sure what exactly they could do in Oklahoma, the reason they didn’t take these steps is that both women were in the military. Given the then-applicable “Don’t Ask, Don’t Tell” policy, any action to recognize their relationship of the relationship between Dubose and the child could have endangered their careers. (This is actually a fairly common situation and one of the lesser known but more serious consequences of that now-changed policy.)

In December, 2012, the parties split up. In February, 2013, North terminated Dubose’s contact with the child. Dubose began the legal action seeking an order of support (that she would pay to North), and an order granting visitation or custody. North responded by asserting that Dubose had no standing.

I’ve talked about the “no standing” argument before. This is basically the argument that North could have made if I had sought contact with the child. The idea is that I haven’t any basis at all for any sort of claim and therefore North shouldn’t have to go to the time/effort of really engaging with the issues raised. It’s a version of “you are no one to this child.” As such, it is an argument I find deeply troubling and offensive.

The problem for Dubose was the language of Oklahoma law. In defining who can maintain an action, the statute speaks of the child, the mother of the child, and “a man” whose paternity is in question. Needless to say, Dubose is not a man and so does not fit within the statutory language. “Man” is also defined as a “male individual”–again, excluding Dubose.

Dubose tried to argue around this by noting that Oklahoma also has a statute that says “words used in the masculine gender include the feminine.” (This is pretty standard. “All men are created equal” is (at least now) read to include women.) While the court found this argument creative, it wasn’t buying it, because the specific language seemed to the court to be quite specific in its use of “man.” Thus, Dubose lost. She has no right to claim a relationship with the child.

Now if you look at Oklahoma law, you can see that if Dubose had been male she would have been a presumed father. (I’m assuming here, and it seems to be almost beyond doubt, that she held the child out as her own. This does not require steps to formalize a legal relationship.) Additionally, because of this language in the OK statutes, I don’t think that that presumption could have been rebutted at the time the case was raised. Thus, it seems to me fairly likely that a man in Dubose’s position would have won.

To be clear, this is NOT because a man would have had a genetic connection. Holding out doesn’t require that. He would have won simply because he was male. This, it seems to me, is a bit of a problem. In my view there’s no reason to think that a child in this position is more invested in the relationship with the non-legal parent where the non-legal parent is male.

In fact, the Oklahoma language is something of an anachronism. Here’s a newer version of what is obviously the same basic statute. Notice that it is gender neutral?

It may be that the Oklahoma court was correct in interpreting the Oklahoma statute, but it seems to me in doing so they created a situation that suggests gender discrimination. Thus, I rather wonder if there isn’t a claim that IF that is what the statute says, then the statute is impermissible? Perhaps there will be more to follow……

Do you consider holding out is anachronistic because it was a proxy for genetic relationship? In other words, is the idea that now that we can know who is genetically related we don’t need to use this rough approximation? That’s surely one way of looking at it–and I think it is what the drafters of the Uniform Parentage Act thought when the wrote the 2000 version of the act. They took the holding out provisions away. But in 2002 they put them back in, I think because they got lots of comments that holding out was still important.

One can ask why it is still important when we have genetic certainty. Perhaps there are two answers: The state may like it because it allows them to find someone for child support–the guy who is holding out. And he cannot get out from under the obligation by just invoking DNA. In addition, like de facto, it protects the existing relationships of children, whether they sprung from genetics or not. On this last point you could say that holding out sets the bar for which relationships are protected too low and that de facto does it better.

perhaps a little bit of everything you wrote. in part it was a proxy for a genetic relationship, but in case it wasn’t, this was obviously a prince of a guy for being willing to declare himself the father of an otherwise fatherless child. i think none of these assumptions are true anymore, not the genetics, not the character aspect, and not the assumption that the kid would be orphaned and uncared for.

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About the Blog

Family law is shaped by and helps shape our worlds. It changes all the time, propelled by the diversity of our families and our experiences. It matters (and should matter) to many of us. Whether or not we think about the law, we are subject to it. That's why I started this blog.

Many topics in family law fascinate me. I hope to create a forum for intelligent and sustained discussion of some of the more compelling family law issues. I have started here with questions of parentage--who are the parents of a child. It's not as simple as it seems. But it is a terribly important one. By building slowly, case by case, story by story, I hope to slowly develop a rich and layered understanding of what it means to be a parent, one that perhaps, some day, the law can learn from.

My hope is that many of you will join me in the project and that the whole will be greater than the sum of the parts.